IN THE CASE OF: BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160002868 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160002868 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________x_____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160002868 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his bad conduct discharge (BCD). 2. The applicant states, in effect; a. He is asking the Board to review his years of military service. He thinks about his mistakes every day. He was convicted after he signed an affidavit; he did not know his rights. He thought he would be able to continue his career. b. He feels he was not informed of his rights. He would not have signed anything that would have put him out with a BCD without counsel present. There was no physical evidence, just word of mouth and individual immunity granted by the prosecuting authority. c. The judge recommended that his BCD be dismissed. Not knowing the law is not an excuse for waiting so long to try and get this process completed. His total focal point was to provide for his dependent after his discharge, not knowing he could have submitted it sooner. d. After his discharge, he worked as an Army contractor supporting troops all over the world in various ways, helping them to complete their mission. 3. The applicant provides an excerpt of his court-martial proceedings, dated 5 October 2000. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 14 December 1981. He completed his initial entry training and was awarded military occupational specialty 92Y (Unit Supply Specialist). He progressed through the ranks and was promoted to the rank of sergeant first class (SFC)/E-7. 3. The applicant was charged with violations of the Uniform Code of Military Justice (UCMJ); however, the specific DD Form 458 (Charge Sheet) and documents related to his separation processing are not available for review. 4. Order 293-2, issued by Detachment A, 18th Personnel Services Battalion, Fort Bragg, NC on 19 October 2000, reassigned the applicant to the Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY on 5 October 2000 for confinement. 5. General Court-Martial Order Number 2, issued by Headquarters, XVIII Airborne Corps and Fort Bragg, NC on 19 January 2001, shows the applicant was convicted of unspecified charges on 5 October 2000. His sentence included his confinement for 75 days, his reduction to the lowest enlisted grade, and his separation from service with a BCD. 6. The applicant provides an excerpt his court-martial proceedings on 5 October 2000, which shows: * the applicant and counsel were asked to rise * the military judge read his sentence, which consisted of his reduction to the grade of E-1; his confinement for 75 days; and his discharge from the service with a BCD * the applicant and counsel were asked to be seated * the military judge stated "In light of the accused's nearly 19 years of heretofore unblemished, dedicated service to his country, both home and abroad, I recommend the convening authority suspend the bad conduct discharge" * the court-martial adjourned after the military judge asked if there was anything else to take up 7. General Court-Martial Order Number 88, issued by Headquarters, U.S. Army Armor Center and Fort Knox on 18 May 2002, shows the applicant's sentence, which consisted of a BCD, confinement for 75 days, and reduction to the lowest enlisted grade, was finally affirmed. That portion of the sentence pertaining to confinement had been served. Article 71(c) having been complied with, the BCD was ordered duly executed. 8. The applicant was discharged on 13 September 2002. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, section IV, as a result of court-martial, and his service was characterized as bad conduct. He completed 20 years 6 months and 28 days of service, with 60 days of time lost. REFERENCES: 1. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel: a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 3, section IV provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. 2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. DISCUSSION: 1. The complete circumstances in this case are not available for review. However, the available record shows the applicant received a BCD pursuant to an approved sentence by a general court-martial. 2. In the absence of evidence showing otherwise, his BCD is presumed to have been administratively correct and in conformance with applicable laws and regulations. The appellate review was completed and the affirmed sentence ordered duly executed. All requirements of law and regulation were met and his rights were fully protected. 3. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002868 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2